Los Angeles daily herald., 1887-03-15

conversation with -" and thel
proceed and lay the foundation for i'm.
parchment. Possibly the witness may
Immediately recognize the times, place
and persons, and answer accordingly
The object of the statute is to so identity
the statements as that there may be nj
misunderstanding on the part of the
witness as to the particular conversation
referred to. The witness was party te
the action-the plaintiff-and counsel
should have been allowed to at least at
tempt to lay foundation, and if he did
not succeed the objection could have
been made when an attempt followed to
contradict the witness.
Again, the plaintiff testified in answer
to the question:: Estate the elements
of your damage, wherein you were
damaged by his failure to comply with
his agreement to marry you." IT was
damaged in my feelings, and there has
been great deal said about me, and
placed me in very bad condition"
etc.
In cross examination the defense
attempted to show the conduct and
associates of plaintiff. subsequent to the
marriage of defendant. This was not
allowed by the Court OH the ground that
it was not in cross. examination.
am Of the opinion that it was legiti-
mate cross. examination to show, assum
ing it could have been shown, that her
own conduct and associates had occs.
stoned "a great deal" to be said about
her. and "placed" her "in very bad
condition. This answer must have had
weight with the jury in arriving
at verdict; it was offered as basis
of damages. and in discrimination the
fullest and freest opportunity might well
have been allowed to sift the meaning Of
the testimony. The plaintiff had testi.
fed, under objection, to matters occur
ring after the marriage of the defendant,
and had stated: "The first I found out
he was going to marry Miss Bennett was
when he was married and | saw it in the
papers; that was the first intimation l
had of it," She was damaged, she testi-
fed, Sin her feelings she thought
q great deal of him." This damage
comes after the breach of the contract,
ami defendant should have been allowed
in cross-examiuation to show the state of
her feelings by her acts. 1t is true that
the Court has some discretion in con.
trolling cross-examinations, but that dis.
cretion reaches only to an extension OF
the boundary of examination. and not to
its destructi on and suppression.
Suppose, and we eau only suppose,
that the actions, conduct and associa.
tions of plaintiff subsequent to the mar.
riage of defendant could have been
shown to be sufficient to account for any
such remarks as were made unfavorable
to her, certainly it would seem to have
been reasonable to have given ths jury a
fair view of the field and allowed them
to arrive at just conclusion as to how
much or how little was owing to the
failure of the defendant to fulfill his
contract"
Upon this point the Court instructed
the jury, to-wit:
at was the duty of the plaintiff in
this action, to use all ordinary and reas.
enable care and means to prevent any
injury arising from the breach of the al
|eged contract-should you believe there
was oh contract-and she can only
recover damages for such loss as could
not by such care and means be avoided"
Again, instruction Is is as follows, to.
wit:
''ln the eyes of the law, a contract of
marriage is entered INTO foc the mutual
comfort and happiness Of the contracting
parties, q ID the law will absolve either
party from its performance and from
damages occasioned by its breach, where
either has beea guilty of personal un.
chastity in which the other did not par.
ticipate, and of which they were ignorant
At the time of the contract, or during its
SOD tinuation.e
The logical inference from this instruc-
lion is that Ignorance" is essential, and
hat knowledge of unchastity would not |
relieve from the contract, or from the |
'ecovery of damages. The instruction |
ioes not appear to be cured OF its vice
by the charge as whole, and it does
lot require much comment to demonstrate |
hat it is misleading and prejudicial.
The Court instructed the jury as fol. |
ows, to-wit:
"If any witness has, in your judg. |
neni, sworn falsely in any material re-
;pect, he or she is to be distrusted in |
others, and their testimony should not
DC dCCCptCl VI aStCu utOh "hthOue
and refused to give the follow
ng upon the ground that it was mot
aw, and given IN the charge modified to |
make it correct"
"The Court further instructs the jury |
that a witness false in one part OF his |
estmony is to be distrusted in others. |
Therefore if you believe the plaintiff |
testified wilfully falsely to any one ma.
terial fact in the case, you should view |
ner evidence as to other facts with dis |
trust"
The instruction asked for and refused |
is taken in it's first part from the Code of |
Civil Procedure, and is properly modi- |
led in its latter part by the word 'wil.
iuliy." The Court instructs the jurors |
that witness willfuly false in any ma
terial respect is to be distrusted in |
others, and then informs them that the |
testimony of such witness should not |
be accepted and acted upon without
great caution. The law says--!"dis.
trusted" and the instruction asked for
was much less open to misconstruction
Lasily-this action was brought to re-
cover damages for breach of marriage
contract-seduction was not alleged and
therefore no damages a'ked for on that
account in the pleading.
"Under. a complaint in such case,
which contains no allegation of seduc.
lion, evidence Of that fact cannot be
to enhance the damages. -
Gates vs.. Mckinney, As Ind, p. $685..
Plaintiff testified in this case that she
was chaste up to the breach of the con.
tract except with defendant, and in
cross. examination OF defendant, under
the objecti IN of his counse', he was
obliged to answer explicit questions as 10
improper intercourse with plaintiff, in
the affirmative.
1t is true that the Court instructed
the jury in substance that, seduction not
being alleged, they should find no dam
ages therefor; but, in closing his argu
n,ent to the jury, counsel for the plain.
80 L. L p